Research › Search › Judgment

Himachal Pradesh High Court · body

2013 DIGILAW 776 (HP)

Sher Mangat Ram v. Krishna Devi

2013-08-27

DHARAM CHAND CHAUDHARY

body2013
JUDGMENT Dharam Chand Chaudhary, Judge (oral) Challenge herein is to the judgment and decree dated 8.12.2006, passed by learned Additional District Judge, Fast Track Court, Una, in Civil Appeal No.85/2K RBT No.111/04/2000, whereby the appeal preferred against the judgment and decree passed by learned Senior Sub Judge, Una, in case No.106/92 on 23.10.2000, decreeing thereby the suit for declaration preferred by the respondents, hereinafter referred to as the plaintiffs, has been affirmed and the appeal dismissed. 2.The parties to the suit are real brothers. The bone of contention is a piece of land entered in Khewat No. 96 min, Khatauni No.165/90, bearing Khasra No.1579 (new), measuring 1050-85 hectares, situate in Up Mahal, Malahat, Nagar Mahal, Una. Admittedly, the suit land was in possession of Mando, their predecessor-in-interest, in the capacity of non-occupancy tenant. Its Khasra number was 116 and area 4-0 bighas. Jamabandi for the year 1960-61 Ext.P1 can be pressed into service in this behalf. After the death of Mando, the same came to be recorded in possession of the appellant, hereinafter referred to as the defendant. It is so reflected in the jamabandi Ext.P-2 for the year 1970-71. Similar entries came to be recorded in Jamabandis for the years 1978-79, 1979-80 and Misal Hakiat Bando Basti for the year 1988-89 Exts. P3 to P5, respectively. 3.Plaintiffs claim that initially the suit land remained in possession of their father Mando and after his death, the same continued to be in their joint possession alongwith the defendant. They became owners thereof by the operation of H.P. Tenancy and Land Reforms Act, 1975. The village underwent consolidation and the suit land came to be denoted by new Khasra No.181 and 183, as per entries in Misal Hakiat Bandobast Ext. P3, for the year 1978-79. The village again underwent settlement operation and Khasra No.1579 was carved out in place of old Khasra Nos. 181 and 183 Min, as per entries reflected in Misal Hakiat Bandobaast Jadid for the year 1988-89 Ext. P5 and vide mutation No.1354, the suit land came to be entered in Up Mahal Malahat Nagar from village Bharolian Khurd. The defendant, who allegedly is a clever and influential person, somehow managed to get the possession of the suit land recorded in his name in connivance with the revenue staff behind the back of the plaintiffs. P5 and vide mutation No.1354, the suit land came to be entered in Up Mahal Malahat Nagar from village Bharolian Khurd. The defendant, who allegedly is a clever and influential person, somehow managed to get the possession of the suit land recorded in his name in connivance with the revenue staff behind the back of the plaintiffs. On the strength of such wrong entries, he threatened them to oust from the suit land and when they came to know about such entries having been recorded qua the suit land in the revenue record, they requested him to desist from throwing such unlawful threats, but to no avail. Hence, the suit for declaration to the effect that the plaintiffs alongwith the defendant are joint owners in possession of the suit land to the extent of 1/3rd share and the entries in the revenue record, showing the defendant in exclusive possession thereof, being wrong, illegal, void abinitio and having no effect on the right, title or interest of the plaintiffs, have been sought to be quashed, with the consequential relief of permanent prohibitory injunction, restraining the defendant from ousting the plaintiffs from the suit land. 4.The defendant on entering appearance has contested the suit. He has raised preliminary objections qua maintainability of suit, the same being bad for join- joinder of necessary parties, estoppel and that the civil Court has no jurisdiction to entertain and try the suit under Section 57 of the Consolidation of Holdings Act and also the H.P. Tenancy and Land Reforms Act. 5.On merits, no doubt it is admitted that the suit land was in possession of their father in the capacity of tenant, however, he during his life time, had relinquished the tenancy in favour of the owners. After abandonment and relinquishment of the tenancy by their father, the owners inducted the defendant as tenant on payment of rent to them and as such he is in exclusive possession thereof.He was living separately from his father and earning is livelihood by cultivating the suit land and the plaintiffs were never in possession thereof. While admitting that a new Khasra No.1579 was carved out during settlement operation, it is also submitted that a portion of the suit land came to be shown in the holdings of Prakash Chand and Gurmail. He allegedly approached the settlement authorities for getting the Karukans of the suit land corrected. While admitting that a new Khasra No.1579 was carved out during settlement operation, it is also submitted that a portion of the suit land came to be shown in the holdings of Prakash Chand and Gurmail. He allegedly approached the settlement authorities for getting the Karukans of the suit land corrected. The suit allegedly has been filed by the plaintiffs in connivance with aforesaid Prakash Chand and Gurmail. It is, therefore, submitted that the plaintiffs, who had no right, title or interest whatsoever in the suit land, are not entitled to the relief as sought in the plaint and the suit, therefore, was sought to be dismissed. 6.In replication, the plaintiffs have denied the preliminary objections being wrong and on merits reiterated their case as set out in the plaint. 7. On such pleading of the parties, the Court below has framed the following issues: 1.Whether the plaintiffs are entitled for the relief of declaration to the effect that the plaintiffs alongwith the defendant are joint owners in possession of 1/3 share each out of the suit land, as alleged? OP Parties. 2.Whether the entry showing the defendant to be in exclusive possession of the suit land as Gair Morusi is void as alleged? OP Parties. 3.Whether the plaintiffs are entitled for the relief of permanent injunction, as alleged? OPP. 4. Whether the suit is not maintainable and suit is bad for non-joinder of necessary parties? OPD. 5. Whether the plaintiff is estopped from filing the present suit by his act and conduct? OPD. Whether the father of the parties had relinquished the tenancy in favour of the owners and the defendants were inducted as tenants on payment of rent by the owners? OPD.7.Relief. 8.After recording the evidence as produced by both the parties and considering the same, learned trial Court has decreed the suit, as pointed out at the outset. 9.In the appeal, preferred by the defendant before learned lower appellate Court, the judgment and decree passed by the trial Court has been affirmed and the appeal dismissed vide judgment and decree impugned in this appeal. 10.The challenge to the impugned judgment and decree is on the sole ground that the Courts below have failed to appreciate the entries in respect of the suit land as mentioned in the record-of-rights and based its findings on surmises and conjectures. 10.The challenge to the impugned judgment and decree is on the sole ground that the Courts below have failed to appreciate the entries in respect of the suit land as mentioned in the record-of-rights and based its findings on surmises and conjectures. According to him, no decree could have been passed as the plaintiffs were never in possession of the suit land and it is he alone, who remained in possession thereof throughout and ultimately became its owner by virtue of operation of law in the year 1976. Also that the suit filed in the year 1992 on the face of it is hopelessly time barred. 11.The appeal has been admitted on the following substantial questions of law: 1.Whether the findings returned by the learned Courts below contrary to the evidence coming on record are sustainable in the eyes of law, if no its effect? 2. Whether the injunction orders restraining a party from dispossessing the other party from land can be passed in absence of the proof that the part is in possession of the land, if no its effects? 3. Whether the suit of the plaintiff is barred by limitation if yes, its effect? 12.Shri Ashok Sharma, Advocate, representing the appellant-defendantas vehemently argued that overwhelming documentary evidence, as has come on record, leads to the only conclusion that the defendant isexclusive owner in possession of the suit land and the plaintiffs have nothing to do therewith. Therefore, according to Mr. Sharma, the suit could have not been decreed at all. 13.Shri N.K. Thakur, Senior Advocate, assisted by Ms. Ishita Bhandari, Advocate, while repelling the contention so raised on behalf of the defendant-appellant, has forcefully contended that the concurrent findings recorded by both the Courts below, after appreciating the evidence available on record, cannot be interfered with in second appeal, without there being any substantial question of law arising for adjudication. Mr. Thakur, therefore, has supported the impugned judgment and decree and sought the appeal to be dismissed. Mr. Thakur, therefore, has supported the impugned judgment and decree and sought the appeal to be dismissed. 14.As per the settled legal principle, in a second appeal, findings of fact, even may be erroneous, should not normally be interfered with unless and until found to be recorded on the basis of assumptions, conjectures and are perverse.The scope for interference with concurrent findings of fact in a second appeal is limited one and such interference is legally permissible only in a situation where it appears to the High Court that both the Courts below have misdirected themselves in appreciating the question of law. The settled legal proposition therefore, is that High Court should not interfere with the concurrent findings of fact in a routine and casual manner by substituting its subjective satisfaction in place of lower Courts. The fate of this appeal has to be decided in the light of the given facts and circumstances and also the legal position, discussed hereinabove. 15.The legal questions, on which this appeal has been admitted, are that the findings recorded contrary to the evidence and the decree of permanent prohibitory injunction has been passed without any evidence. 16.As noticed supra, in second appeal, the High Court should not re-appreciate the evidence adduced by the parties on both sides. Reappraisal of evidence is permissible only in those cases where the findings as recorded by the 1st appellate Court are perverse and not based on the evidence available on record. 17.Since the substantial questions of law No.1 and 2, referred to hereinabove, pertain to the perversity of the judgment on account of misreading of evidence, therefore, in order to adjudicate the same, re-appreciation of evidence has become necessary. The oral evidence has come on record by way of own statement of plaintiff No.1, who has stepped in the witness box as PW-1 and the defendant, who has appeared in the witness box as DW-1. The documentary evidence is consisting of Jamabandis pertaining to the suit land produced by both the parties. The oral evidence has come on record by way of own statement of plaintiff No.1, who has stepped in the witness box as PW-1 and the defendant, who has appeared in the witness box as DW-1. The documentary evidence is consisting of Jamabandis pertaining to the suit land produced by both the parties. 18.The oral evidence is equally balanced for the reason that while plaintiff No.1 has come forward with the version that it is the father of the parties, who was i possession of the suit land in the capacity of non-occupancy tenant and later on became owner thereof by operation of law and after his death, they alongwith the defendant are in joint possession of the same, the defendant has come forward with the version that though his father was recorded in possession of the suit land in the capacity of non-occupancy tenant, however, it was merely a paper entry because it is he who remained in cultivable possession of the suit land throughout and later on became owner thereof by operation of law. 19.Now, if coming to the documentary evidence, jamabandis for the year 1960-61 Ext. P1 and for the year 1955-56 Ext. P6 reveal that it is Mando, who was in possession of the suit land as non-occupancy tenant. This fact is even established from oral evidence also. The presumption, therefore, is that it is Mando, father of the parties, who was in possession of the suit land as non- occupancy tenant. There is change in respect of entries in the record-of-rights i.e. jamabandi Ext. P2 for the year 1970-71, as this document shows that it is the defendant, who is in possession of the suit land as non-occupancy tenant. The onus to rebut the presumption of truth attached to the earlier entries, reflected in Jamabandis Exts.P1 and P6, and prove otherwise that the change in the subsequent Jamabandi for the year 1970-71 was made rightly in accordance with law in his favour, was upon the defendant. He, however, has miserably failed to discharge such onus. Had he been inducted as tenant by the owners or had his father relinquished the tenancy rights in favour of the owners, he could have produced evidence, may be oral or documentary for the reason that the agreement either oral or in writing is the creature of tenancy. He, however, has miserably failed to discharge such onus. Had he been inducted as tenant by the owners or had his father relinquished the tenancy rights in favour of the owners, he could have produced evidence, may be oral or documentary for the reason that the agreement either oral or in writing is the creature of tenancy. It is the owner(s) of the suit land, who could have been the best witnesses to prove the fact of creation of tenancy in favour of the defendant. But he has not examined any owner in support of his case. There is no record such as Rapat Rojnamcha to show that he was inducted as tenant over the suit land. There is again no evidence to show that before altering the entries in the revenue record and showing the suit land in possession of the defendant, no report was entered by the Patwari in the Rojnamcha Vakyati nor this change was witnessed by Numberdar or any other respectable person of the village and it is thereafter, the Revenue Officer having jurisdiction over the matter passed order in this behalf. 20.Therefore, there is no proof that before effecting change in respect of possession of the suit land in the name of the defendant in revenue record, proper procedure was followed. True it is that in the Jamabandis Exts. D1 to D3, the defendant came to be entered in possession of the suit land continuously, however, when there is no evidence available on record, produced by him to justify the change of entries, no presumption of truth can be said to be attached to such entries in the Jamabandis. Therefore, the entries, which are without any basis and not supported by any evidence nor came to be recorded in accordance with the rules and the procedure prescribed therefor, are of no help to the claim of the defendant nor on the basis thereof he can be said to be in possession of the suit land. There is also no legal and acceptable evidence to show that he was inducted as tenant by the owners over the suit land. There is again no evidence to show that his father Mando had relinquished tenancy rights in favour of the owners during his life time and that thereafter he was inducted as tenant therein. There is also no legal and acceptable evidence to show that he was inducted as tenant by the owners over the suit land. There is again no evidence to show that his father Mando had relinquished tenancy rights in favour of the owners during his life time and that thereafter he was inducted as tenant therein. Therefore, it cannot be said that the findings recorded by both the Courts below are contrary to the evidence and it is the defendant, who alone is in possession of the suit land in exclusion of his brothers. 21. Another substantial question of law pertains to limitation. It is significant to note that in the written statement the defendant never raised any such question nor pressed an issue in this behalf. It is for the first time, this question has been raised before this Court in the present appeal. True it is that the finding about limitation is a finding of fact and not open for interference in the second appeal. However, keeping in mind the contention raised on behalf of the defendant that the question of limitation can be raised at any stage including appellate stage, the suit cannot be said to be barred by limitation for the reason that plaintiffs on coming to know about wrong entries in the revenue record qua the suit land, requested the defendant to admit their claim also in the suit land and when he refused to do so, it is on the next day, the suit was filed. Otherwise also, mere stray entry in the revenue record incorporated behind the back of the plaintiffs confers upon the defendant no right, title or interest in the suit land in exclusion of the plaintiffs. They all rather being sons of Shri Mando, its previous owner, have right, title and interest to the extent of 1/3rd share each. 22. .What to speak of substantial questions of law referred supra, this Court even has not found any illegality or irregularity having been committed by the learned lower appellate Court while affirming the judgment and decree of the trial Court. For the foregoing reasons, the appeal fails and the same is accordingly dismissed. There is, however, no order as to costs.